Resignation – A way out by choice – Part 2
Recapping Part 1
Part 1 dealt with the more generic and germane aspects of resignation, thereby establishing the legal foundation pertaining to resignation and setting the scene for dealing in Part 2 with the more practical nuances of resignation as an escape mechanism within context of the employment contract.
Withdrawal of resignation
It may happen and sometimes do, that an employee resigns on the spur of the moment or in circumstances where the decision to do so is not a calculated one.
After having given some thought to it and having consulted interested parties, the employee may elect to formally withdraw his/her resignation.
The common law position in this regard is clear: Once a resignation is communicated as legally and contractually required, it can only be withdrawn with the consent of the employer. Someone once aptly remarked that the resignation in effect converts an indefinite employment contract to a relatively short duration “fixed term contract”.
The strict legal position on the withdrawal of a resignation aside, fair labour practice, in my humble opinion, calls for some latitude here.
The working environment is very stressful at times and employees work under immense pressure, which could sometimes impair rationality, leading to rash decisions being taken. Such a decision could potentially have devastating consequences which were not realised at the point of making the decision. It may adversely affect several lives besides that of the decision maker. What I am advocating here is to at least consider allowing for a reasonable and calculated “cooling off-period” to follow directly on a resignation resorted to under some degree of emotional stress.
This is how it works:
It functions on the basis of a balance of convenience. The shorter the period between submitting the resignation and indicating the wish to retract it, the more amenable the employer should be to allow the retraction, because it would, arguably, be more inconvenient for the employee to suffer the consequences of the rash decision to resign as it would be inconvenient for the employer to allow the employment relationship to continue.
The longer the period between resignation and retraction, the more likely it is that the balance of convenience would be in favour of the employer as the latter may have already acted upon the resignation by contractually securing a replacement, which arrangement would not be able to be undone without undue hardship and prejudice to the innocent replacement.
The “cooling off-period”-suggestion is my personal view and approach to withdrawals of resignations informed purely from a humane and fairness point of view.
I however draw a clear distinction between resignation within context of constructive dismissal on the one hand (which is also an irrational decision, but employer induced) and isolated, mere once-off impulsive resignations by someone in a situation where the likelihood and prospect of continuing indefinitely in employment exist, but for the rash decision to resign. My focus is on the latter.
It still remains the employer’s prerogative to hold the employee to his/her decision to resign and not allow the suggested latitude.
Resignation by means of SMS
One of the statutory requirements for a valid termination of the employment contract is that it needs to be in writing (unless when dealing with an illiterate person) – refer Section 37(4)(a) of the BCEA.
As more and more inter-personal and inter-group communication is nowadays done via social media, the question arises whether communication via SMS (for instance) constitutes written communication.
In my research of this blog topic, I came across at least one Labour Court-case, which dealt with this very question, namely: Sihlali Mafika v SA Broadcasting Corporation Ltd (2010).
In its deliberation judge Van Niekerk remarked obiter (in passing) that he was not convinced that where there is a resignation in the form of a clear and unequivocal intention by the employee not to continue with the employment contract, it is invalid only because it was not reduced to writing.
Focusing more on the validity of communication via social media, judge Van Niekerk referred to Section 12 of the Electronic Communications and Transactions Act, 25 of 2002, providing as follows:
“A requirement in law that a document or Information must be in writing is met if the document or Information is-
(a) in the form of a data message; and
(b) accessible in a manner usable for subsequent reference…”
For context, Section 1 of the above-mentioned act defines “data message” as follows:
“Data message” to mean data generated, sent, received, or stored by electronic means…”.
Within this context the LC concluded that a communication by SMS is a communication in writing and consequently, so is resignation by SMS.
Resignation and criminal prosecution
Nothing prevents the employer to still prosecute an employee criminally in respect of conduct perpetrated during the employee’s tenure as employee and resignation has no bearing on such eventuality.
In fact, subjecting an employee to disciplinary proceedings based on conduct that could be criminal in nature and criminally prosecuting that employee based on the same conduct, are two distinctly different legal processes with a differently formulated charge and a different standard of proof.
A guilty finding in the internal disciplinary proceedings is not an indication that the employee will necessarily be guilty in the criminal proceedings and having been found not guilty in the criminal proceedings does not render a guilty finding in the disciplinary proceedings invalid.
Resignation and the fixed term contract
With a fixed term contract the tenure of the contact is clear from the onset, either specifying termination of the contract by date or by completion of a specified project.
Unless the fixed term contract itself contains a provision for premature termination, any unilateral premature termination would amount to breach and thus repudiation of the provisions of the contract.
Remedies in the event of breach of contract
As indicated in Part 1, where the employee breaches the contract by not resigning with the required notice, the law of contract provides for two remedies, namely:
- Enforcing specific performance (holding the employee to the contractual notice requirement) or
- “Accepting” the repudiation, cancel the contract and sue for damages incurred as result of the breach.
Again, this is the legal position, which not always resonate with the practicality of a particular situation from a pure fairness point of view.
There is a particular opinion expressed by judge Van Niekerk in the Sihlali-case that to enforce the remedy of specific performance, thus holding the employee against his/her will to the employment contract, even in case of breach by the employee, would reduce the employment relationship to a form of indentured labour.
The relationship character of the employment contract makes it often contra-productive to remedy breach of contract resulting from unilateral short notice given by requiring specific performance. Such a forced employment simply does not benefit either the employee or the organisation in the greater scheme of things.
This then leaves the remedy of accepting the repudiation, cancelling the contract, and claiming damages to the disposal of the employer. To be able to successfully claim damages, damages must be proved and that is not all that easy, except where the employee is a particularly scarce resource which could not be replaced easily, causing the employer to be financially prejudiced and quantifiably so.
One practical solution to address the quantification of damages due to unilaterally imposed short notice, is to build into the employment contract the following stipulation:
Should short notice be given of termination of services by the employee, contrary to the contractual provision and without consent from the employer, the parties agree upfront that such conduct on the part of the employee will constitute breach of contract. Furthermore, that the damage to the employer resulting from such breach is quantified to be equal to the amount in remuneration associated with period of short notice given. No further proof of damage is then required at the time of the claim for damages.
Resigning to avoid being disciplined
It happens from time to time that an employee, facing disciplinary action, elects to rather resign in order to prevent possible dismissal.
If the resignation is in accordance with the provisions of the employment contract (which is unlikely in such circumstances) the employee can still be disciplined and possibly be dismissed within the notice period of the resignation and the dismissal will then replace the resignation as reason for termination of the employment contract.
More likely though, the resignation to avoid dismissal will be on short notice and in breach of the provisions of the employment contract. As indicated above, this would leave the employer with one of two remedies, namely enforcing specific performance (the desirability and functionality of which is somewhat questionable as indicated above under the heading: “Remedies in the event of breach of contract”) or claiming damages resulting from the breach.
In this regard, I would like to propose another approach, specifically aimed at where the resignation provides a beneficial exit or parting of ways for both the employee (resignation looking better on his/her record than dismissal) and the employer (thereby circumventing having to go through the disciplinary process and avoiding possible exposure to time consuming litigation proceedings which could result from a dismissal).
Although not very likely, there is always the possibility that the employee may argue (notably, without the prospect of success) that he/she was forced to resign being threatened with disciplinary action by the employer. My proposal hereunder addresses this eventuality, amongst others.
With a view of possibly condoning the short notice resignation without any undue prejudice to either party, I propose that the employer formally responds to the employee’s unilateral short notice resignation, stating clearly for the record, the following:
- That the proposed resignation is in contravention of his/her contractual obligation pertaining to the termination of the employment contract and constitutes breach.
- That the employee exposes himself/herself to a claim for damages resulting from the breach.
- That the employee deprives himself/herself of the opportunity to state his/her case before an impartial decision maker in the anticipated disciplinary proceedings prior to any decision being made regarding his/her continued employment.
- That the employer encourages the employee to reconsider resigning on unilateral short notice and rather allow the disciplinary proceedings to take its course. An employer contemplating constructive dismissal will never resort to such encouragement.
- That should the employee, with full knowledge of the explained implications of a short notice resignation in the circumstances, still wish to resign on short notice instead of allowing the disciplinary proceedings to be followed through to its logical conclusion and indicate such wish in writing in response to this communication, the employer will condone the short notice resignation without penalisation and dispose with the intended disciplinary proceedings.
Important – I do not propose that this condonation route be followed where a potential criminal offence is committed by the employee. Such would be an instance where the employer would be justified to enforce specific performance, proceed to conduct the disciplinary proceedings in absentia (if need be) and to pursue criminal prosecution against the employee, regardless of whether the employee is found guilty as charged in the internal disciplinary enquiry, given the different standards of proof in criminal and civil cases.
Resignation is a multi-facetted concept with lots of legal angles to it, all of which I did not cover in this two-part blog article.
I rather concentrated on those aspects of resignation which are particularly important for the employer as a lay person when being confronted with a resignation from an employee.
I tried to strike a balance between the legitimate interests of the employer and that of the employee, especially with the right to freedom of association and contractual obligations in mind.